Fig Health, Inc. d/b/a Culina Health (“Culina,” “we,” “us,” or “our”) provides our services (described below) and related content to you through our website(s) located at https://culinahealth.com/ (the “Site”) and through our mobile applications and related technologies (“Mobile Apps”, and collectively, such Mobile Apps and the Site, including any updated or new features, functionality and technology, the “Service”). All access and use of the Service is subject to the terms and conditions contained in these Terms of Service (as amended from time to time, these “Terms of Service”). By agreeing to these Terms of Service during your initial log in to the Service, or otherwise accessing, browsing, using the Site, Mobile Apps, or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.
We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these Terms of Service were last revised. You may read a current, effective copy of these Terms of Service by visiting the “Terms of Service” link on the Site and under the “Legal — Terms of Service” section of our Mobile App. We will also notify you of any material changes, either through the Service user interface, a pop-up notice, email, or through other reasonable means. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CULINA ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
In addition, when using certain features through the Service, you will be subject to any additional terms applicable to such features that may be posted on or within the Service from time to time. All such terms are hereby incorporated by reference into these Terms of Service.
Access and Use of the Service
The Service is designed to provide precision nutrition solutions through telehealth and via a companion application. The Service is provided to users who pay using their insurance (the “Insured Users”) and to those who pay themselves for packages, subscription-based access, or Culina Health services. (the “Subscribed Users”).
Your Registration Obligations
Member Account, Password and Security
You are responsible for maintaining the confidentiality of your password and account details, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Culina of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Culina will not be liable for any loss or damage arising from your failure to comply with this paragraph.
Modifications to Service
General Practices Regarding Use and Storage: You acknowledge that Culina may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Culina’s or its third-party service providers’ servers on your behalf. You agree that Culina has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Culina reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Culina reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
General Practices Regarding Use and Storage
You acknowledge that Culina may establish general practices and limits concerning use of the Service, including the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Culina’s or its third-party service providers’ servers on your behalf. You agree that Culina has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Culina reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Culina reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Conditions of Access and Use
The following are examples of the kinds of content and/or uses that are illegal or prohibited by Culina. Culina reserves the right to investigate and take appropriate legal action against anyone who, in Culina’s sole discretion, violates this provision, including suspending or terminating the account of such violators and reporting the violator to law enforcement authorities. You agree to not use the Service to:
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies, or regulations of networks connected to the Service;
violate any applicable local, state, national, or international law, or any regulations having the force of law;
impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
further or promote any criminal activity or enterprise or provide instructional information about illegal activities;
obtain or attempt to access or otherwise obtain any content or information through any means not intentionally made available or provided for through the Service;
circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content (as defined below)) available on or through the Service, including through the use of virtual private networks; or
engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Culina from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).
No employee, independent contractor, agent, or affiliate of any competing nutrition service provider company is permitted to view, access, or use any portion of the Service without express written permission from Culina. By viewing, using, or accessing the Service, you represent and warrant that you are not a competitor of Culina or any of its affiliates, or acting on behalf of a competitor of Culina in using or accessing the Service.
To the extent the Service or any portion thereof is made available for any fee, you may be required to select a payment plan and provide information regarding your credit card or other payment instrument. You represent and warrant to Culina that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with Culina or the Payment Processor (as defined below), as applicable, of any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Culina the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Service. Fees, and the process for how they will be collected, may be different for Insured Users and Self-Pay Users. If your payment plan includes an ongoing subscription that is automatically renewed periodically, you hereby authorize Culina (through the Payment Processor) to bill your payment instrument in advance on such periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Culina know within sixty (60) days after the date that Culina charges you. We reserve the right to change Culina’s prices. If Culina does change prices, Culina will provide notice of the change through the Service user interface, a pop-up notice, email, or through other reasonable means, at Culina’s option, at least thirty (30) days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You will be responsible for all taxes associated with the Service, other than taxes based on Culina’s net income.
Refunds and Cancellations
Payments made by you hereunder are final and non-refundable, unless otherwise determined by Culina. You may cancel your subscription online by emailing us at email@example.com.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer, or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
Self-Pay Users Membership Terms
For those individuals who are Self-Pay Users, you agree that you are voluntarily enrolling in Culina’s membership program. Pursuant to this enrollment, you understand and agree to the following:
Initial sessions will not be included as one of the monthly “membership” sessions in your first month.
You will be billed a ninety-nine dollar ($99 USD) initiation fee at the time of your enrollment, or the date of your initial session, whichever you prefer. This fee will be waived for existing patients as well as those purchasing an “Empower” membership.
You will be billed your membership dues on the first of each month. Payments will be billed prior to services rendered, meaning you will be billed on the first of each month for services rendered in that month.
Membership sessions do not carry over month to month. If you miss any of your sessions each month, you will not be able to carry them into a subsequent month.
You are entitled to reschedule one (1) session per month. All requests to reschedule must be made seventy-two (72) hours prior to the original appointment time. If you attempt to reschedule more than one (1) time in a given month, you are not guaranteed a new appointment time.
You understand that you are required to request each appointment at least two (2) weeks in advance via the online portal. If you do not request to book two (2) weeks in advance, you are not guaranteed your monthly sessions.
You may cancel your membership at any time. You will not get a refund if you choose to cancel prior to using all paid sessions within a given month.
You understand the fees referenced above cannot be submitted for insurance reimbursement
Mobile Services and Software
The Service includes certain services that are available via a mobile device, including (i) the ability to browse the Service and the Site from a mobile device, and (ii) the ability to access certain features and content through Mobile Apps (collectively, the “Mobile Services”).
By using the Service, you consent to receive phone call from a live representative, prerecorded calls and information from us via SMS and/or MMS messages sent through an automated telephone dialing system (“Text Service”), even if you have opted in to the National Do Not Call List, any state Do not Call List, or the internal Do Not Call List of any company. You may be required to respond to an initial message as instructed to complete your registration and confirm enrollment in the Text Service. The enrollment process will disclose the program, frequency of messages, and options to cancel your enrollment. You do not have to participate in the Text Service in order to use the Services. In the event you no longer want to participate in the Text Service, you agree to notify us directly. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Culina account information to ensure that your messages are not sent to the person that acquires your old number. There is no additional charge for the Text Service, but your mobile carrier’s standard message and data rates apply to any messages you send or receive through the Text Service, including confirmations and subsequent texts. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any SMS or MMS messages, as delivery is subject to effective transmission by your mobile carrier and compatibility of your mobile device. Please contact your mobile carrier if you have any questions regarding these issues or your mobile data and messaging plan. As described in the Text Service enrollment and welcome messages, including messages sent to a shortcode associated with the Text Service or by reply to any message you receive from us, you may text “STOP” to cancel or “HELP” for customer support information. If you choose to cancel your Text Service, you agree to receive a final text message from the Text Service confirming your cancellation. You can also invite others to use the Services through the Text Service by providing the numbers of those you want to invite or by selecting the individuals you want to invite from your contacts list (if you have uploaded one). By asking us to invite others to use the Services, you represent to us that those you invite consent to receive the automated invitation messages and that you are authorized to convey that consent to us.
Telephone Consumer Protection Act (“TCPA”)
Subject to these Terms of Service, Culina hereby grants to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to (a) install the Mobile App on one mobile device and (b) use the Mobile App for your own personal use solely to access and use the Service. For clarity, the foregoing is not intended to prohibit you from installing the Mobile App on another device on which you also agreed to these Terms of Service. Each instance of these Terms of Service that you agree to in connection with downloading a Mobile App grants you the aforementioned rights in connection with the installation and use of the Mobile App on one device.
Mobile App License
The technology and software underlying the Service or distributed in connection therewith are the property of Culina, its affiliates, and its licensors including the Mobile Apps, the “Software”). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Culina.
Culina is headquartered in the United States. If you access or use the Service from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction. Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk.
Special Notice for International Use; Export Controls:
Culina offers Software that may be made available through the Apple App Store, the Google Play Store, or other distribution channels (“Distribution Channels”). If you obtain such Software through a Distribution Channel, you may be subject to additional terms of the Distribution Channel. These Terms of Service are between you and us only, and not with the Distribution Channel. To the extent that you utilize any other third-party products and services in connection with your use of the Service, you agree to comply with all applicable terms of any agreement for such third-party products and services.
Third-Party Distribution Channels:
With respect to Mobile Apps that are made available for your use in connection with an Apple-branded product (the, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
Culina and you acknowledge that these Terms of Service are concluded between Culina and you only, and not with Apple Inc. (“Apple”), and that as between Culina and Apple, Culina, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the Apple Media Services Terms and Conditions.
Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS product that you own or control, as permitted by the “Usage Rules” set forth in the Apple Media Services Terms and Conditions, except that such Apple-Enabled Software may be accessed and used by other accounts associated with the purchaser via Apple’s Family Sharing or volume purchasing programs.
Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software, if any, to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty, which will be Culina’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
Culina and you acknowledge that Culina, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including: (a) product liability claims; (b) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection, privacy, or similar legislation, including in connection with the Apple-Enabled Software’s use of Apple’s HealthKit and HomeKit frameworks.
In the event of any third-party claim that the Apple-Enabled Software or your possession and use of that Apple-Enabled Software infringes that third party’s intellectual property rights, as between Culina and Apple, Culina, not Apple, will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
You represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints, or claims with respect to the Apple-Enabled Software, they should be directed to Culina as follows: firstname.lastname@example.org 917.647.1665 720 Monroe Street, Suite E512 Hoboken, NJ 07030
You must comply with applicable third-party terms of agreement when using the Apple-Enabled Software, e.g., your wireless data service agreement.
Culina and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enabled Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enabled Software as a third-party beneficiary thereof.
The following applies to any Mobile App you download from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that these Terms of Service are between you and Culina only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Terms of Service; (c) Google is only a provider of Google Play where you obtained the Google-Sourced Software; (d) Culina, and not Google, is solely responsible for Culina’s Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or these Terms of Service; and (f) you acknowledge and agree that Google is a third-party beneficiary to these Terms of Service as it relates to Culina’s Google-Sourced Software.
Intellectual Property Rights
You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret, or other proprietary rights and laws. Except as expressly authorized by Culina, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you upload to or make available through the Service in accordance with these Terms of Service. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
The Culina name and logos are trademarks and service marks of Culina (collectively the “Culina Trademarks”). Other Culina, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Culina. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Culina Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Culina Trademarks will inure to our exclusive benefit.
Under no circumstances will Culina be liable in any way for any content or materials of any third parties (including users), including for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Culina does not pre-screen content, but that Culina and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Culina and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Culina, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
You represent and warrant that you own all right, title and interest in and to such content that you make available to Culina (“User Content”), including all copyrights and rights of publicity contained therein. You hereby grant Culina and its affiliated companies, successors, and assigns a non-exclusive, worldwide, royalty-free, fully paid-up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, and irrevocable license to copy, display, upload, perform, distribute, store, modify, and otherwise use your User Content in connection with the operation of the Service and the promotion, advertising or marketing of the foregoing in any form, medium or technology now known or later developed. You assume all risk associated with your User Content and the transmission of your User Content, and you have sole responsibility for the accuracy, quality, legality and appropriateness of your User Content. For the avoidance of doubt, you agree that we may use, disclose, market, license and sell de-identified and/or aggregated information for any purpose without restriction and that you have no interest in such information, or in the proceeds of any sale, license or other commercialization thereof.
Any questions, comments, suggestions, ideas, feedback, reviews, or other information about the Service (“Submissions”), provided by you to Culina are non-confidential and Culina will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment, attribution, or compensation to you.
You acknowledge and agree that Culina may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws, or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Culina, its users, or the public. You understand that the technical processing and transmission of the Service, including your User Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
Third-Party Services and Websites
Health and Medical Service Disclaimer
WE DO NOT PROVIDE PROFESSIONAL MEDICAL SERVICES OR ADVICE. THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL ADVICE OR OPINION. NO DOCTOR-PATIENT RELATIONSHIP IS CREATED. USE OF THE SERVICES IS NOT FOR MEDICAL EMERGENCIES. IF YOU THINK YOU HAVE A MEDICAL EMERGENCY, CALL 911.
No Doctor-Patient Relationship. Any and all services provided by, in and/or through the Service are for informational purposes only. Culina is not a medical professional, and Culina does not provide medical services or render medical advice. Nothing contained in the Services should be construed as such advice or diagnosis. The information and reports generated by us should not be interpreted as a substitute for physician consultation, evaluation, or treatment, and the information made available on or through the Service should not be relied upon when making medical decisions, or to diagnose or treat a medical or health condition. YOUR USE OF THE SERVICE DOES NOT CREATE A DOCTOR-PATIENT RELATIONSHIP BETWEEN YOU AND ANY OF THE CULINA PARTIES.
You are urged and advised to seek the advice of a physician or a medical professional with any questions you may have regarding your health before beginning any weight loss effort regimen, physical activities or any other plans that may be referenced, discussed or offered under the Service. If you are being treated for an illness, taking prescription medication or following a therapeutic diet to treat a disease, it is important to consult with your physician before using the Service. You represent to us (which representation shall be deemed to be made each time you use the Service), that you are not using the Service or participating in any of the activities offered by the Service for purpose of seeking medical attention. You further agree that, before using the services, you shall consult your physician, particularly if you are at risk for problems resulting from exercise or changes in your diet. If any information you receive or obtain from using the Service is inconsistent with the medical advice from your physician, you should follow the advice of your physician.
To the extent permitted under applicable law, you agree to defend, indemnify, and hold harmless Culina, its affiliates, and its and their respective officers, employees, directors, service providers, licensors, and agents (collectively, the “Culina Parties”) from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind, and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service, or your violation of any rights of another. Culina will provide notice to you of any such claim, suit, or proceeding. Culina reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, and you agree to cooperate with any reasonable requests assisting Culina’s defense of such matter. You may not settle or compromise any claim against the Culina Parties without Culina’s written consent.
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE CULINA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
THE CULINA PARTIES MAKE NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE CULINA PARTIES WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING DAMAGES FOR LOSS OF GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE CULINA PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL THE CULINA PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID CULINA IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”, “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION WILL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Culina, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, or any aspect of the relationship or transactions between us, will be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Culina are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
YOU AND CULINA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CULINA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Prohibition of Class and Representative Actions and Non-Individualized Relief
Culina is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Culina should be sent to 720 Monroe Street, Suite E512 Hoboken, NJ 07030(“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Culina and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Culina may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Culina or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Culina is entitled.
Pre-Arbitration Dispute Resolution
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. To the extent any Arbitration Fees are not specifically allocated to either Culina or you under the AAA Rules, Culina and you shall split them equally; provided that if you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of such Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of any Arbitration Fees, Culina will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Culina will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
Costs of Arbitration
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Culina and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination will be made by AAA. If your claim is for $10,000 or less, Culina agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement will be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement will be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms of Service will continue to apply.
Notwithstanding any provision in these Terms of Service to the contrary, Culina agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Culina written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Future Changes to Arbitration Agreement
You agree that Culina, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including for lack of use or if Culina believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Service, may be referred to appropriate law enforcement authorities. Culina may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Culina may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Culina will not be liable to you or any third party for any termination of your access to the Service.
These Terms of Service (together with the terms incorporated by reference herein) constitute the entire agreement between you and Culina governing your access and use of the Service, and supersede any prior agreements between you and Culina with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use Third-Party Services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of New Jersey without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Culina submit to the personal and exclusive jurisdiction of the state and federal courts located within Hudson county in New Jersey. The failure of Culina to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of these Terms of Service and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Culina, but Culina may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.” Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. Culina will not be in default hereunder by reason of any failure or delay in the performance of its obligations where such failure or delay is due to civil disturbances, riot, epidemic, pandemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or unavailability of electrical power, network access or equipment, or any other circumstances or causes beyond Culina’s reasonable control.
Please contact us at firstname.lastname@example.org and 720 Monroe Street, Suite E512 Hoboken, NJ 07030 to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.
Questions? Concerns? Suggestions?
(1) Note to Culina: Please send us your policies related to patient care packages, memberships and cancellations so that we can incorporate them into these Terms of Service. (2) Note to Culina: Note that certain states, including CA, have autorenewal statutes that require that notices containing certain information be provided to consumers at the time of purchase or signup and in follow-up emails confirming the subscription purchase. If users pay on a subscription basis, we can review the notices you intend to use. Such laws may also require certain methods of communication for cancellation and the like. (3) Note to Culina: Strawman language. Confirm 60 days works for you or revise as necessary. (4) Note to Culina: Strawman language. Confirm timing/process or revise as necessary. (5) Note to Culina: As you may be aware, Stripe requires in its entity-facing Stripe Services Agreement specific disclosures to be made to end customers and compliance with other procedural requirements. See: https://stripe.com/ssa#section_c (Section 4 – “Responsibilities and Disclosures to Your Customers”). These obligations include providing a receipt, providing ways to contact you, and informing the customer that Stripe and its affiliates are processing transactions for you. Stripe also requires a “fair and neutral return, refund, cancellation, or adjustment policy” and clear disclosure about how customers can receive a refund. See id. Note that different payment processing providers, or other third parties that provide services that integrate with your website, may have different requirements and thus those specific third-party terms should be reviewed to ensure that these Terms of Service comply with such requirements. (6) Note to Culina: Please confirm that these terms only apply to Self-Pay Users, not to those that pay through insurance. (7) Note to Culina: Please confirm. (8) Note to Culina: Do you use any open source components in the Mobile Apps, any other locally installed software/agents, or in any code or scripting language that is pushed to an end user for execution browser-side? If so, the same constitutes a “distribution” and you would need to consider compliance with the relevant notice and attribution requirements of the applicable open source licenses. Let’s discuss as there are various ways to comply with these requirements, including what’s in this strawman provision. (9) Note to Culina: Are you comfortable using New Jersey as the governing law? Or, do you prefer to use New York? (10) Note to Culina: What is the preferred venue for resolving disputes under this agreement? Most clients choose the county closest or most convenient to them, and we’ve input the county where your NJ office is located.